Com. v. Hays, K. ( 2018 )


Menu:
  • J-A26018-17
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    Appellant             :
    :
    :
    v.                          :
    :
    :
    KIRK JACOB HAYS                          :   No. 1787 MDA 2016
    Appeal from the Order Entered October 31, 2016
    In the Court of Common Pleas of Lycoming County Criminal Division at
    No(s): CP-41-CR-0001083-2014
    BEFORE: BOWES, J., OLSON, J., and RANSOM, J.
    MEMORANDUM BY OLSON, J.:                          FILED JANUARY 19, 2018
    The Commonwealth of Pennsylvania appeals from the order entered on
    October 31, 2016. The subject order granted the post-sentence motion filed
    by Kirk Jacob Hays (hereinafter “Defendant”) and granted Defendant a new
    trial. We vacate and remand.
    At approximately 2:00 a.m. on April 11, 2014, Pennsylvania State
    Police Trooper Ryan Golla and his partner, Trooper Adam Kirk, observed a
    blue Toyota truck make a right-hand turn without using a turn signal. N.T.
    Trial, 6/22/16, at 11.   Because of this violation, the troopers conducted a
    traffic stop of the vehicle. Id.
    As Trooper Kirk testified at trial, he approached the driver’s side of the
    vehicle and saw that Defendant was the driver of the vehicle; Trooper Kirk
    testified that he immediately smelled “a strong odor of alcoholic beverage
    coming from the vehicle.”      Id. at 35.    Since there was a passenger in
    J-A26018-17
    Defendant’s vehicle, Trooper Kirk testified that he asked Defendant to exit
    the vehicle; the trooper testified that he then “smell[ed] an odor of alcohol
    coming from” Defendant. Id. Further, Trooper Kirk testified, he requested
    that Defendant perform several field sobriety tests; Trooper Kirk testified
    that Defendant’s performance on those tests caused him to “believe [that
    Defendant] was under the influence [of alcohol] to a degree that rendered
    him incapable of safely operating the vehicle.” Id. at 38-39. Trooper Kirk
    thus arrested Defendant and transported him to the Williamsport DUI Center
    for processing. Id.
    Old Lycoming Police Officer Matthew McCormick testified that, at the
    Williamsport DUI Center, he requested that Defendant submit to a blood
    draw to test whether alcohol was present in Defendant’s blood. Id. at 64-
    65.   In accordance with this request, Officer McCormick read Defendant
    Pennsylvania’s DL-26 form. See id. At the time, the DL-26 form declared
    (among other things): “it is the officer’s duty to inform the licensee that, if
    the licensee refuses to submit to the chemical test, the licensee’s operating
    privileges will be suspended for at least one year, that if the licensee refuses
    and is convicted [of] or pleads guilty to violating Section 3802(a) of the
    Vehicle Code (related to impaired driving), the licensee is subject to more
    severe penalties, the same as [if] he [were] convicted of driving with the
    highest rate of alcohol.”   See id.; see also Sitoski v. Commonwealth,
    Dep’t of Transp., 
    11 A.3d 12
    , 15 n.2 (Pa. Cmwlth. 2010).
    -2-
    J-A26018-17
    Defendant then submitted to the blood draw.       Subsequent testing
    revealed that Defendant’s blood alcohol content was 0.192.            N.T. Trial,
    6/22/16, at 89-90.
    On July 17, 2014, the Commonwealth filed an information against
    Defendant and charged him with committing a number of crimes, including
    driving under the influence of alcohol (“DUI”) (general impairment), DUI
    (highest rate of alcohol), and turning movements and required signals.1
    On January 21, 2015, Defendant filed an omnibus pre-trial motion.
    Within this pre-trial motion, Defendant requested that the trial court
    suppress the evidence against him because: 1) the initial stop of his vehicle
    was illegal and 2) the Commonwealth “failed to preserve evidence of the
    [Pennsylvania State Police] dash cam video” relating to his vehicle stop.
    Defendant’s Pre-Trial Motion, 1/21/15, at 1-4. Of note, within Defendant’s
    pre-trial motion, Defendant never claimed that his consent to the blood draw
    was involuntary or coerced and Defendant never requested that the trial
    court suppress the evidence of his blood alcohol content as the result of an
    alleged involuntary consent. See 
    id.
    The trial court denied Defendant’s pre-trial motion on May 26, 2015
    and, on June 22, 2016, Defendant proceeded to a jury trial on the charges.
    At the conclusion of the trial, the jury found Defendant guilty of DUI (general
    ____________________________________________
    1   75 Pa.C.S.A. §§ 3802(a)(1), 3802(c), and 3334(a), respectively.
    -3-
    J-A26018-17
    impairment) and DUI (highest rate of alcohol).2 N.T. Trial, 6/22/16, at 130.
    On August 23, 2016, the trial court sentenced Defendant to serve a term of
    five days to six months in jail for the DUI (general impairment) conviction;
    in   accordance      with    an    agreement     between   Defendant   and   the
    Commonwealth, the trial court imposed no further penalty for the DUI
    (highest rate of alcohol) conviction. N.T. Sentencing, 8/23/16, at 6.
    On September 1, 2016, Defendant filed a post-sentence motion where
    he claimed – for the first time – that his consent to the blood draw was
    involuntary. Defendant’s Post-Sentence Motion, 9/1/16, at 2-4. Specifically,
    Defendant claimed, on the day after his jury trial (or, June 23, 2016), the
    United States Supreme Court decided Birchfield v. North Dakota, ___
    U.S. ___, 
    136 S.Ct. 2160
     (2016). In Birchfield, the Supreme Court held
    that a state may not “impose criminal penalties on the refusal to submit to
    [a warrantless blood] test.” Birchfield, 136 S.Ct. at 2185-2186. Further,
    the Supreme Court held, where the petitioner only consented to a
    warrantless blood test after being told by the police that “test refusal in
    these circumstances is itself a crime,” the petitioner’s consent to the test
    was potentially involuntary.        Id.    The Birchfield Court thus vacated the
    petitioner’s judgment of sentence and remanded the case to the state court,
    so that the court could “reevaluate [the petitioner’s] consent . . . [, based
    ____________________________________________
    2The trial court found Defendant guilty of the summary offense of turning
    movements and required signals. N.T. Trial, 6/22/15, at 133.
    -4-
    J-A26018-17
    on] the totality of all the circumstances . . . [and] given the partial
    inaccuracy of the officer’s advisory.” Id. at 2186.
    Within   Defendant’s   post-sentence   motion,   Defendant    relied   on
    Birchfield and essentially claimed that he only consented to the blood draw
    after the police informed him that, if he refused the blood draw, he would be
    subject to enhanced criminal penalties upon conviction.      See Defendant’s
    Post-Sentence Motion, 9/1/16, at 2-4.      Defendant requested that the trial
    vacate his judgment of sentence and schedule a “hearing [] to determine if
    [Defendant’s] consent [to the blood draw] was voluntary.” Id. at 4.
    The Commonwealth opposed Defendant’s motion and argued that
    Defendant was not entitled to post-sentence relief because Defendant did
    not properly preserve the issue at, or before, trial.        Commonwealth’s
    Answer, 10/4/16, at 2.
    On October 31, 2016, the trial court entered an order granting
    Defendant’s post-sentence motion and granting Defendant a new trial. Trial
    Court Order, 10/31/16, at 1-2. The Commonwealth filed a timely notice of
    appeal and now raises one claim to this Court:
    Did the trial court commit an error of law by holding that
    [Birchfield] applies retroactively to [Defendant], even
    though [Defendant] failed to properly preserve the
    suppression argument that his consent for a blood draw was
    coerced, and granting [Defendant] a new trial?
    Commonwealth’s Brief at 7 (some internal capitalization omitted).
    We agree with the Commonwealth and conclude that, since Defendant
    did not raise any claim at, or before, trial that his consent to the blood draw
    -5-
    J-A26018-17
    was involuntary, the trial court erred in granting Defendant’s post-sentence
    motion. Indeed, our recent opinion in Commonwealth v. Moyer, 
    171 A.3d 849
     (Pa. Super. 2017) requires that we vacate the trial court’s order in this
    case.
    In Moyer, Ms. Moyer was found guilty of DUI and homicide by vehicle.
    On June 21, 2016 (or, two days before the United States Supreme Court
    decided Birchfield), the trial court imposed its judgment of sentence. Id.
    at 851-852. While the trial court retained jurisdiction of the case, Ms. Moyer
    filed a nunc pro tunc post-sentence motion and claimed that, in accordance
    with Birchfield, her consent to the blood draw was involuntary.      Id.   Ms.
    Moyer thus requested that the trial court vacate her judgment of sentence
    and remand for a new trial. Id.
    The trial court accepted Ms. Moyer’s nunc pro tunc post-sentence
    motion, but held that Ms. Moyer was “not entitled to retroactive application
    of Birchfield because she did not preserve a challenge to the warrantless
    blood draw during trial.”   Id. at 852. On appeal to this Court, Ms. Moyer
    argued that the trial court “erred in declining to vacate her DUI conviction
    under Birchfield.” Id. at 855. We held that the trial court did not err. As
    we explained:
    the United States Supreme Court handed down Birchfield
    two days after [Ms. Moyer’s] sentence. [Ms. Moyer] never
    challenged the warrantless blood draw during trial, and did
    not raise any issue under Birchfield until her nunc pro tunc
    post-sentence motion. In Pennsylvania, it has long been
    the rule that criminal defendants are not entitled to
    -6-
    J-A26018-17
    retroactive application of a new constitutional rule unless
    they raise and preserve the issue during trial.
    Commonwealth v. Newman, 
    99 A.3d 86
    , 90 (Pa. Super.
    2014) (en banc), appeal denied, 
    121 A.3d 496
     (Pa. 2014).
    The Newman Court relied on Commonwealth v. Cabeza,
    
    469 A.2d 146
    , 148 (Pa. 1983). There, the Supreme Court
    wrote:
    [W]here an appellate decision overrules prior law and
    announces a new principle, unless the decision
    specifically declares the ruling to be prospective only,
    the new rule is to be applied retroactively to cases
    where the issue in question is properly preserved at all
    stages of adjudication up to and including any direct
    appeal.
    
    Id.
     (emphasis added). Instantly, [Ms. Moyer] failed to
    challenge the warrantless blood draw at any stage of the
    litigation prior to her nunc pro tunc post-sentence motion.
    Thus, she is not entitled to retroactive application of
    Birchfield.
    Moyer, 171 A.3d at 855.
    In the case at bar, Defendant “failed to challenge the warrantless
    blood draw at any stage of the litigation prior to [his] . . . post-sentence
    motion.”     See id.      Therefore, as was true in Moyer, Appellant “is not
    entitled to retroactive application of Birchfield.”3 See id. The trial court
    erred in concluding otherwise.
    ____________________________________________
    3 Within Defendant’s brief and the trial court’s opinion, Defendant and the
    trial court posit that the Commonwealth waived any claim that Defendant
    “failed to preserve the Birchfield issue.” Trial Court Opinion, 6/19/17, at 5;
    see also Defendant’s Brief at 7-9. According to Defendant and the trial
    court, this waiver occurred when the Commonwealth and Defendant agreed,
    at sentencing, that the trial court should only sentence Defendant on the
    DUI (general impairment) conviction and that the trial court should impose
    no further penalty on the DUI (highest rate of alcohol) conviction. Id.
    (Footnote Continued Next Page)
    -7-
    J-A26018-17
    Pursuant to Moyer, we vacate the trial court’s October 31, 2016 order,
    which granted Defendant’s post-sentence motion.
    Order vacated. Case remanded. Jurisdiction relinquished.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 01/19/2018
    (Footnote Continued) _______________________
    Neither Defendant nor the trial court has cited to any      case law or other
    authority to support this waiver argument – and we          have found none.
    Simply stated, Defendant waived any claim that              his consent was
    involuntary by failing to raise the argument at or before   trial. Moyer, 171
    A.3d at 855; Cabeza, 469 A.2d at 148.
    Moreover, to the extent Defendant and the trial court rely upon Pennsylvania
    Rule of Criminal Procedure 581(B) to support the ruling, we note that Rule
    581(B) permits a supplemental pretrial suppression motion where “the
    opportunity did not previously exist, or the interests of justice otherwise
    require.” Pa.R.Crim.P. 581(B). In the case at bar, Defendant did not file a
    supplemental pretrial motion seeking the suppression of evidence; rather,
    Defendant filed a post-sentence motion, where he sought the vacation of
    his judgment of sentence and a remand for a new trial. Therefore, Rule
    581(B) has no application to the case at bar.
    -8-
    

Document Info

Docket Number: 1787 MDA 2016

Filed Date: 1/19/2018

Precedential Status: Precedential

Modified Date: 1/19/2018